New Delaware law places unconstitutional burdens on voter guides
For Release: October 23, 2013 Contact: Joe Trotter Phone: 210-352-0055 (Cell)
Alexandria, Va. – The Center for Competitive Politics (CCP) filed a lawsuit in federal court today seeking to overturn a new Delaware law that violates the First Amendment by placing unconstitutional burdens on groups that publish nonpartisan voter guides.
“The law requires groups to choose between publishing a voter guide or submitting to substantial regulatory burdens while violating the privacy of even their small-dollar supporters,” said Allen Dickerson, CCP’s Legal Director. “The result is less objective and useful information about Delawareans’ representatives in Washington and Dover.”
The Delaware law, which took effect in January, creates a new form of regulated speech known as a “third-party advertisement.” The law appears to subject groups that publish voter guides to the same regulatory and disclosure burdens as political committees and candidate committees.
The lawsuit was filed on behalf of Delaware Strong Families (DSF), which published a nonpartisan voter guide in 2012 and hopes to publish a similar guide next year. The lawsuit says “[a]bsent a declaratory judgment [by the court], DSF will not publish and disseminate its voter guides in 2014, for fear of risking enforcement of the Delaware Elections Disclosure Act. Thus, Delaware’s campaign finance regime—left untouched—will chill speech in a manner found unconstitutional by the Supreme Court” in the landmark 1976 decision of Buckley v. Valeo.
Under the law, any communication that merely mentions the name of a candidate—regardless of context—is regulated as a “third-party advertisement” if it is distributed within two months of a general election. If a group spends over $500 on such advertisements, the state forces the group to file reports as detailed as those of a candidate committee or political action committee.
As a part of its mission, DSF informs voters about the positions of candidates for federal, state, and county-wide office on issues of importance to the community. It does this through voter guides listing every candidate seeking every office, as well as every candidate’s position on a variety of issues. Even though the group does not endorse candidates and the voter guides are nonpartisan, the law would force the group to turn over their contribution lists to the state and make detailed filings that the Supreme Court has found to be unconstitutional in other cases.
“It’s wrong for the State to require that Delaware Strong Families register with the government, hand over contributor lists, and comply with the State’s regulatory morass just to get permission to distribute information about every candidate running for office and where they stand,” said Nicole Theis, president of Delaware Strong Families. “There is nothing in the First Amendment that says that we need to beg the state for a license to speak.”
DSF would face stiff penalties for publishing the voter guides in 2014 without abiding by the new law.
“If DSF were to continue issuing voter guides and then neglect or refuse to file these burdensome reports, the organization would face a fine of $50 a day,” said Dickerson. “The Buckley Court upheld disclosure of a group’s contributors only if its communications objectively urge people to vote for a specific candidate. The government cannot impose extensive regulatory burdens, or violate the privacy of donors, where an organization does not advocate for any candidate.”
Additionally, the Act required the State Commissioner of Elections to promulgate new disclosure forms by January 1, 2013, but those forms have yet to be published.
A copy of the complaint can be found here, and a copy of the case backgrounder can be accessed here.
The Center for Competitive Politics promotes and defends the First Amendment’s protection of the political rights of speech, assembly, and petition. It is the nation’s largest organization dedicated solely to protecting First Amendment political rights.
